Issues for Consultation

In preparation for it's mid-spring national homeownership summit,
the Office of Native American Programs (ONAP) sought to begin the
process of sorting out and acting upon issues of mutual concern
in the provision of affordable housing and community development.
Each tribal leader received
a letter from HUD seeking feedback on important issues and statutory
changes that they believe are needed to the Native American Housing
Assistance and Self-Determination Act (NAHASDA).

List of issues

KEY to abbreviations

Alaska
- Tribes and TDHEs from Alaska

ATNI
- Affiliated Tribes of Northwest Indians

BSRHA
- Bering Straits Regional Housing Authority

EW - Tribes and TDHEs from the Eastern Woodlands
Region

LEGI/X
Co. - represents several small TDHEs in New Mexico

NCIHA
- Nevada California Indian Housing Association

NP
- Tribes and TDHEs from the Northern Plains Region

NW
- Tribes and TDHEs from the Northwest Region

NWIHA
- Northwest Indian Housing Association

SP - Tribes and TDHEs from the Southern Plains
Region

SW
- Tribes and TDHEs from the Southwest Region

SWIHA
- Southwest Indian Housing Association

Issue

Comments

Submitted
By

Appropriations

a)
Need more money for the Indian Housing Block Grant Program.

b)
Establish tribal set-asides in programs for the elderly--including
but not limited to all Section 202 Supportive Housing for
Elderly programs, including 1) Assisted Living Production;
2) Section 8 Voucher subsidies to be used for the shelter
portion of assisted living; 3) Elderly Service Coordinators;
and 4) Assisted Living Grants; and all Section 811 Supportive
Housing for Disabled Persons.

c)
Appropriations for FY 2002 should be $950 million.

d)
Congress should appropriate additional funds to provide small
tribes special subsidy to travel to tribal consultation meetings,
negotiated rule making and work group sessions.

e)
A recent NAIHC study concluded that the minimum funding necessary
in order for Indian Country to make progress in housing its
people has risen to $1.4 billion.

f)
Funding levels should be increased for training and education
initiatives in Indian Country, not from existing funding allocations,
but from new appropriations by Congress.

a)
The American Homeownership and Economic Opportunity Act of 2000
(H.R. 5640) requires HUD to calculate the modernization portion
of the formula on amounts allocated between fiscal years 1992
to 1997. This will reduce the allocation for certain small tribes.

b)
Revise the minimum funding level to ensure the viability of
each tribe/TDHE housing program (especially for small tribes).

c)
Units developed after October 1, 1997, (non-1937 Act units)
should be included in the formula.

d)
The funding formula provides operating subsidies for the 1937
Act housing stock. Many tribes have little or no existing
stock and thus, receive no funding under this formula. One
solution is for housing units constructed under NAHASDA to
be added to its housing stock for formula purposes.

e)
Minimal funding for small tribes needs to be reevaluated to
take into consideration the relative impact of administrative
and planning costs and adequate project costs.

f)
Standardize the requirements for determining when tribes receive
credit under the formula for counties in which they have provided
housing investment.

g)
TDHEs have objected to the formula funding to tribes with
no population living in the village.

h)
Many tribes receive grants that are so small, they do not
have sufficient funds to do projects and carry out a program.
Should tribes receiving small grants be required to form consortia
with other tribes (not limited to consortia with other small
tribes) so that the formula grant is large enough to have
a housing program? Should the program be split into two components--formula
and competitive--so that tribes that would receive only a
small grant under the formula could either compete for sufficient
funds to carry out a project or form consortia with other
tribes so that the formula grant is large enough to have a
housing program?

i)
The minimal funding level is severely inadequate for any tribe
to meet the reporting requirements of NAHASDA. NAHASDA should
be modified to allow for not less than $350,000.00 annual
base funding under the needs component of the formula per
Federally recognized tribe.

j)
Formula should incorporate a maximum cap of $40 million for
any tribe under the needs component of the formula.

k)
Any increase in appropriations from the current level should
be used to fund increases for small and minimally funded tribes
to achieve base line funding.

l)
Before HUD adjusts or recaptures NAHASDA IHBG funds, HUD should
enter into tribal consultation regarding an appropriate process
to implement these adjustments. If recapture is warranted,
the requirements and specifics of recapturing such funds once
a grant agreement has been executed should be determined through
tribal consultation. HUD should not arbitrarily reduce or
recapture future years formula funding without tribal consultation.

m)
There should be no changes to the funding formula for NAHASDA.

n)
The formula for the Needs portion of the formula should include
some consideration for funding units built under NAHASDA similar
to that given to the CAS built with the 37 Act funding.

a)
EW

b)
EW, SW

c)
NP

d)
NW

e)
NW

f)
EW

g)
Alaska

h)
HUD

i)
SWIHA, NCIHA, LEGI/X Company

j)
SWIHA, NCIHA, LEGI/X Company

k)
SWIHA, NCIHA

l)
SWIHA

m)
Bering Straits RHA

n)
Bering Straits RHA

Administrative
and Planning Costs

a)
Administrative and planning costs are excessive for small tribes.

b)
Define and clarify administrative and planning costs to ensure
that there is a consistent application of the 20 percent limitation
on these costs. Permit funds to be used to develop strategic
and comprehensive land use plans without being prorated to
just the housing portion of these plans. Provide guidance
on the calculation and application of indirect costs.

c)
Consider a one-time start-up grant for new or re-recognized
tribes to permit establishment of adequate administrative
capability.

d)
The "small tribe" definition was removed from the
NAHASDA statute without consultation or notice to the tribes.
The small tribe definition allowed the Secretary to modify
statutory requirements, thus allowing the small tribes a more
streamlined IHP, APR, and other required reports. This might
alleviate HUDs self-described lack of staffing challenges
and the unfunded mandates issue. Currently, small tribes must
comply with the same reporting requirements as larger tribes.
This is difficult with such limited funds. HUD arbitrarily
caps the administration of each IHP at 20%, which does not
allow minimal funded tribes necessary funds for staffing and
operating an office, let alone funding the time, research,
and reporting requirements necessary to remain in compliance
with NAHASDA. Regulations allow administration and planning
to exceed the 20% cap, however, HUD is not typically approving
IHPs that exceed the 20% cap. The small tribe definition should
be restored and the cap on administrative costs should be
lifted.

a)
SP, SWIHA

b)
NW

c)
NW

d)
SWIHA, NCIHA, LEGI/X Company

Cooperation
Agreements

Further
clarification is needed with regard to what a "good faith
effort" is when tribes attempt to secure a cooperation
agreement with a municipality or county. (or another tribe)

EW,
SP

Indian
Housing Plans &
Annual Performance Reports

a)
A more streamlined and accelerated IHP review process is desired.
A review process of 30 days is recommended.

b)
Fiscal year vs. July 1 IHP submission deadlines.

c)
If the IHP review clock is stopped by an ONAP office it should
not start at 60 days when it is started again. Tribes believe
it should start again where it left off or a number of days
less than 60.

d)
Over review of IHPs.

e)
Completely revise the IHP statutory and regulatory requirements
as well as the IHP format. The IHP submission requirements
should only include certifications, project descriptions and
amounts that equal the grant amount, and a comprehensive implementation
schedule for all projects. In addition, IHP should be submitted
in accordance with the tribe/TDHEs fiscal year.

g)
Develop an APR that is more user friendly and consolidates
a multi-year Indian Housing Plan.

h)
With the inception of NAHASDA, many tribes have submitted
IHPs by a TDHE. With the issuance of the Lummi Audit, there
is increasing concern over what these entities are and how
they operate. IHP submission requirements for new TDHEs should
require submission of organizational documents sufficient
to determine if the recipient is a TDHE as defined by NAHASDA.

i)
To provide better customer service, tribes/TDHEs should be
required to submit their IHPs 60 days prior to their year
end. This would level workload and enable HUD staff to complete
more timely reviews of IHP submissions.

j)
Change the submission of IHPs to coincide with fiscal years
(regulatory).

k)
Inform tribes regarding any new or additional information
or review requirements for IHPs and APRs.

l)
The latest version of the APRs is still not compatible with
the information in the Indian Housing Plans. Modification
should be made to both reports so the information is compatible.

m)
The Annual Performance Report is confusing and inconsistent
with NAHASDA and its regulations.

n)
The Annual Performance Report form and/or revisions should
be developed through tribal consultation.

o)
Annual Performance Reports are currently due 60 days following
the end of the tribe/TDHE fiscal year. This is not enough
time to prepare the reports using year-end financial data,
submit to the tribal leadership and/or TDHEs Board of
Commissioners for review and approval, make available to the
tribal community for citizen comments and submit it to HUD
in a timely manner. The 60-day due date should be extended
to a minimum of 120 days.

p)
Some tribes and TDHEs are experiencing lengthy delays in obtaining
approval of their IHPs. When this happens, the housing program
must stretch funding to cover operating costs for up to 24
months.

q)
There is currently no safety net in place to prevent the loss
of NAHASDA funding if a village fails to file an IHP for that
fiscal year. Failure to file a plan by July 1 results in the
loss of those funds back to HUD and into the national pot
for distribution in the following fiscal year.

r)
HUD should structure the APR format to minimize duplicate
data.

s)
The requirement for a housing authority to provide an audit
within 60 days after the end of a fiscal year is not feasible
and should be modified.

a)
EW

b)
SP

c)
NP

d)
SW, SWIHA, NCIHA

e)
NW

f)
NW; Alaska (revise IHP format)

g)
EW

h)
Alaska

i)
Alaska

j)
HUD

k)
NP

l)
SWIHA, NCIHA

m)
SWIHA, NCIHA

n)
SWIHA, NCIAH

o)
SWIHA, NCIHA

p)
SWIHA

q)
Bering Straits Regional Housing Authority

r)
BSRHA

s)
BSRHA

Unfunded
Mandates

Unfunded
mandates, such as environmental reviews and lead-based paint
requirements place burdens on tribes that are already at inadequate
funding levels. Small tribes must comply with all mandates the
same as larger tribes, which are funded at higher amounts. This
places administrative burdens on small tribes that are financially
unable to comply with the requirements.

SWIHA

Environmental
Reviews

a)
Further clarification and assistance in providing waivers for
Indian tribes to expedite environmental reviews is desired.
Can a "Hold" be put on NAHASDA funds until environmental
requirements are satisfied to prevent program violations?

b)
Notice 99-37 requires the tribe or TDHE to supply information
so that HUD can perform the Part 50 Environmental Review.
HUD should come out on site and perform the entire review
without tribal input.

c)
Coordinate the environmental review requirements among all
Federal agencies to develop one uniform set of policies and
procedures. Federal agencies should accept each others
reviews.

d)
NAHASDA requires compliance with the National Environmental
Protection Act but this requires that tribes waive their right
to sovereign immunity from suit in Federal courts prior to
conducting environmental reviews.

e)
Tribes have the option of having HUD conduct the environmental
review; however, HUD is dependent on available funding and
is often untimely due to limited HUD staffing. Indian tribes
should have the option of conducting their own environmental
reviews without waiving their sovereign right of immunity
from lawsuits. Since HUD does not have the administrative
capacity to conduct environmental reviews, tribes are losing
funding, paying late fees, and delaying construction projects.
The Secretary should provide waivers for Indian tribes to
expedite environmental reviews.

f)
In addition to issue e), above, HUD could provide the resources
to tribes to conduct the environmental reviews.

h)
Archaeological costs (part of the environmental review requirements)
severely cut into funds that otherwise would go into renovating
more homes.

i)
Another agreement should be developed that does not require
a waiver of sovereign immunity.

a)
EW

b)
Cheyenne River Housing Authority

c)
NP, NW

d)
SWIHA, LEGI/X Company

e)
SWIHA, LEGI/X Company

f)
LEGI/X Company

g)
Zuni HA

h)
Zuni HA

i)
Navajo Nation

Infrastructure

a)
Under NAHASDA, HUD does not provide separate funding for off-site
sewer and water. Nor are there minimum design standards established
for homes not served by piped water and sewer systems. A few
tribes have proceeded to develop homes in advance of water,
sewer, roads, and power. Homes are complete but do not have
a level of utility service comparable to the communitys
level of service and/or are not compatible with the long-term
plans for water and sewer.

b)
IHS is currently precluded from using their appropriated funding
to extend water and sewer lines to serve new housing developed
under HUD or NAHASDA. We support higher levels of funding
or priority funding for projects extending water and sewer
lines necessary to service new housing funded under NAHASDA.
And, we request congressional support to remove barriers to
using other sources of funding to build infrastructure to
service new housing to be built with NAHASDA funding.

a)
Alaska

b)
Bering Straits Regional HA

Section
184

a)
184 process should be streamlined.

b)
Implement the changes authorized by the American Homeownership
and Economic Opportunity Act of 2000, as soon as possible.

c)
Provide a window within which tribes/TDHEs can assume defaulted
Section 184 mortgages with a minimal amount of documentation
and verification of the tribes/TDHEs credit worthiness.

d)
184 loans should be more accessible to tribes.

e)
184 loans are too complex and take too long to process.

f)
Training and technical assistance must be available for tribes
to develop and adopt required legal codes to facilitate private
lending on reservations.

a)
EW, SWIHA

b)
NW

c)
NW

d)
SWIHA

e)
SWIHA

f)
SWIHA

Title
VI Program

Calculate
the maximum Title VI loan amount at five times the most current
IHBG amount without a deduction for estimated operating expenses.

NW

Eligible
Activities

a)
Base eligible activities on the income of the families served
regardless of whether the home in which they live has been
previously assisted with 37 Act of IHBG funds (i.e.,
affordable housing).

b)
Broaden the interpretation of "crime prevention and safety
activities" to include any crime, health, and safety
activities designed to create or support housing in "safe
and healthy environments," consistent with the Congressional
findings of NAHASDA.

e)
Expand the interpretation of "model activities"
to include activities that are consistent with the purposes
of the NAHASDA without having to meet an additional "affordable
housing" criteria.

f)
Expand the language in NAHASDA and ICDBG to include comprehensive
planning as an eligible activity.

g)
Expand NAHASDA eligible activities to be able to provide service
to all low-income persons.

h)
Because this seems to be the primary reason given by local
governments for not signing a cooperation agreement, should
this paragraph be deleted or revised to permit the tribe to
pay the taxes with block grant funds? (Section 101(d), exemption
from taxation).

i)
Many tribes want to provide services without limiting them
to residents of affordable housing. Permit the services [202
(3), (4), & (5)] generally for low-income families, but
limit the amount of the grant for these activities to 20%.

j)
Specifically, list tenant-based rental as an eligible activity.

k)
Consult on NAHASDA Section 205 (a) (2) as it relates to binding
commitments on the part on non-1937 housing act homeownership
and rental units. ("In general, housing shall qualify
as affordable housing for purposes of this Act except for
housing assisted under section 202, . . . each . . . unit
. ..will remain affordable . . . for the remaining life of
the property. . . .")

l)
Tribes and TDHEs should have flexibility to determine locally
what cost caps are sufficient to provide renovations.

m)
Additional funds are needed to renovate private homes. Because
of construction practices that existed 30-40 years ago, and
because of the absence of building codes at that time, hidden
or unforeseen costs often exist.

a)
NW

b)
NW

c)
NP

d)
SW

e)
NW

f)
HUD

g)
HUD

h)
HUD

i)
HUD

j)
HUD

k)
NP

l)
Zuni HA

m)
Zuni HA

Rents

Revise
the limitation on rents to permit tribes to establish reasonable
rents. As long as rents continue to be calculated based on the
income of the family, the housing project cannot be developed
to be self-sufficient, but will need project-based rental assistance.
In addition, permitting "flat rents" will enable the
block grant program to work better with Low-Income Housing Tax
Credits. If there is a concern that Congress will not support
this change, revise the statute to establish maximum rents,
such as the HUD fair market rents. The revision will permit
tribes to continue to base rent on 30% of the familys
income, if they so choose. (Section 203)

HUD

Building
and Property Standards

a)
Several tribes and the Alaska Federation of Natives have passed
resolutions asking HUD to mandate that HUD-assisted homes have
two doors for fire exits. Under NAHASDA, there are no minimum
building standards required. Consideration should be given to
regulatory minimum design standards for new homes constructed
with NAHASDA funds.

b)
Should housing developed with block grant funds be required
to meet specified property standards, e.g., should new construction
meet standards of a national building code? Flexibility should
be given to take into account the location of the housing.
This could be done by regulation.

a)
Alaska

b)
HUD

Dwelling
construction and Equipment Costs (DC&E)

HUD
relies on the Marshal Swift Cost Estimation method in developing
the CD&Es. The problem with Marshal and Swift is that
they only work with a high confidence factor in urban areas
and usually use some sort of a location multiplier. Once outside
of the road system, the location multiplier is not effective.
BSHA has had to apply for waivers on all our NAHASDA projects
because of the DC&E limits. DC&E cost limits are too
low for communities in our region. Local tribes and housing
authorities should establish their own limits.

Bering
Straits HA

Monitoring

On-site
review process is not being restricted to the implementation
of NAHASDA. HUD has been imposing additional requirements and
requesting additional records and data that may or may not be
appropriate for an on-site HUD review. HUD should limit their
reviews to NAHASDA-related material and programs that were included
in the notice to the tribe or TDHE.

SWIHA

Obligation
of Funds

Clarify
the two-year requirement for obligating funds in the most liberal
way to take into consideration the events and delays that are
being experienced by the tribal/TDHE housing programs.

NW

Reserves,
Program Income, LOCCS

a)
Reserves: Guidance was drafted but not issued on the use/funding
of reserves under NAHASDA in the IHP. How are these funds
obligated, calculated, and how are they intended to be used
when listed in the IHP?

b)
Program Income must be used before making a LOCCS draw. Guidance
is needed on how to budget program income in the IHP as it
is not possible to accurately predict when program income
will be available. Its availability determines which program
year it applies to. This will create money in LOCCS for a
program year that the grantee has previously obligated. Calculation
of program income is overly complex and should be simplified.

c)
Clarity of definition and allowable expenditures of program
income.

d)
Simplify and clarify the program income requirements including
offsets against LOCCS, the allowable expenditure of program
and non-program income.

e)
Tribes and housing programs are being denied access to their
funds in the LOCCS system without notice and in many cases
for invalid reasons. Tribes and HUD during tribal consultation
should agree on the process and notice requirements to deny
access to LOCCS rather than leave it up to the discretion
of individual HUD staff.

a)
SP

b)
SP

c)
SW

d)
NW

e)
SWIHA, SW

GAAP
Conversions

a)
GAAP Conversion is an issue.

b)
Establish a target date for conversion.

c)
Provide training for the conversion to GAAP.

d)
Clarify policy regarding GAAP.

a)
SP

b)
NW

c)
NW and NP

d)
NP

Labor
Issues

a)
The Davis-Bacon rates are too high.

b)
There should be an exclusion to using Davis-Bacon if the project
does not meet a certain threshold.

c)
Issue and implement guidelines for the establishment of tribal
prevailing wage rates in furtherance of the American Homeownership
and Economic Opportunity Act of 2000.

d)
HUD Labor Relations has taken the position that self-help
is not considered volunteer labor and that if a party is benefiting
from NAHASDA they cannot be considered volunteers. They have
also said that when a home is constructed and the buyer is
receiving any form of homebuyer assistance in the financing
(i.e., down payment assistance, mortgage buy down, or interest
reduction) Davis-Bacon wages are required to be paid for construction.

e)
Change the language in NAHASDA to allow for volunteers and
self-help housing construction.

f)
Coordinate the Indian preference requirements among all Federal
agencies to develop one uniform set of policies and procedures.
Establish policies on the application of Indian preference
and Fair Housing requirements in joint funded or leveraged
projects such as HUD multi-family and tax credit projects.

g)
The Navajo Nation set the prevailing rate in the Navajo Nation
through the Navajo Preference and Employment Act, 15 NNC,
Section 601, etc.

b)
Relocation of Shishmaref Housing: If BSRHA must fund the cost
of the relocation, there would be some other activity or work
that would not be funded. This is a significant adverse impact.
One solution would be for appropriate adequate funding to
FEMA for the relocation. Another would be a special appropriation
to the HA to fund our doing the relocation.

c)
Regional Corporations: NAHASDA allocates the current assisted
stock formula to the Regional Tribe which is responsible for
providing the funds necessary for maintenance and operation
of current assisted stock to the owner of the homes developed
under the 1937 Act. To date, Regional Corporations have designated
the existing Regional Housing Authorities as their TDHE, minimizing
the conflict over "funds necessary" for operation
and maintenance. In FY 2001, a Regional Corporation has not
designated the Regional Housing Authority as its TDHE and
has submitted its own IHP. If the Regional Corporation has
no agreement with the Regional Housing Authority for maintenance
and operation, and as they are not the owner of the 1937 stock,
they do not have legal ability to enter/maintain the units.
Should HUD find the IHP in compliance when there is no legal
ability to provide the required maintenance/operation?

d)
The designation of Regional Corporations as tribes and recipients
for the CAS allocations is a major problem and is creating
hardship for housing authorities to provide adequate housing
assistance. Regional Corporations as tribal recipients of
the CAS funds jeopardizes the integrity of the governments
investments in existing housing stock as well as the future
of affordable housing activities. Federal dollars should not
be diverted from the owner of record.